Gospodar noćnog saobračaja

Tuesday may weld but Wednesday casts asunder. Or so you might be tempted to think after last night’s surprising news that Vojislav Šešelj won a huge victory — a victory not only and probably not even primarily for him — in getting judge Frederik Harhoff removed from his case at ICTY on grounds of partiality.

You will remember Harhoff for the brouhaha he caused by writing a leaky little letter. That letter turned out to be the only piece of evidence discussed in relation to Šešelj’s motion. So no doubt, it continues to be an object of contention.

First as to why the decision, though it is his victory, does not primarily benefit Šešelj. There was never a certainty of conviction on the charges against Šešelj, particularly since they relied on indirect forms of responsibility and on showings that Šešelj exercised command when he was in fact subordinate to DB. But once the verdicts came down exonerating Perišić, Stanišić and Simatović, nobody any longer expected Šešelj to be convicted. If no guilt applies to the people who armed, trained, financed and organised the direct perpetrators of crimes, then none is likely to apply to a clown who was hired to wave pistols in front of cameras.

The rusty spoon of fate determined, though, that at one point Šešelj’s interests would coincide with a complex of others and deepen the mess into which ICTY has been sinking itself of late. Presiding judge Meron’s bold circumscriptions of the applicability of international law to really existing states and militaries (parastates and paramilitaries are still fair game) have meant that an interest in sustaining his credibility is now shared by defendants and ex-defendants from multiple sides, Meron’s Wikileak co-stars, defence counsel in ongoing, past and future cases, and the Thick White Četnik Duke. As the proverb says, well-oiled beds make low-friction bedfellows.

Concretely, though, the decision is not likely to do much to alter the course of Šešelj’s case. Its credibility was already damaged by rococo untimeliness and ulcer-inducing mismanagement, so one fiasco more or less means fairly little. The most likely outcome here is that a new judge is assigned to replace Harhoff and that the panel reaches its 2-1 decision a little later rather than a little sooner. It is possible that a rehearing could be ordered before a new panel, but not probable — though trial junkies could just love a trial that competes for longevity with Coronation Street. But most probably this decision will have minor effects on the process and no effect on the outcome.

The main effect will be on processes outside the Šešelj case. Like the letter that brought the ruling about, the ruling itself is symptomatic of the general malaise that derives from divisions within ICTY, which reflects a wider division among people interested in international law more generally. So what did the panel that dismissed judge Harhoff have to say? A few things, most of which are tangentially related to the grounds of Šešelj’s petition:

1. The panel confirmed that ICTY is deeply divided, by adding another 2-1 decision to a long list of 2-1 and 3-2 decisions on matters of fundamental importance where clear law or a united (or even well-managed) judiciary would seek unanimity and clarity.

2. The panel was unanimous in disapproving of a judge using leaks to the media to substitute for arguments in chambers. Judge Liu, writing in dissent, condemned the inappropriateness of the unpurloined letter in stronger language than the majority.

3. The panel agreed that ICTY started making new law in 2012. Both the majority and the dissenting opinion concur that the central issue was whether judge Harhoff had indicated that he faced a dilemma in applying “the current jurisprudence” of the Tribunal. This could have the effect of undermining the argument of people who would like to present recent appeals chamber decisions as though they are settled law.

4. As much as a single document can be said to prove anything (the old “killer fact!” theory), the panel might have indicated that in the oft-discussed contretemps between the Merovingians and the Harhoovers, the Merovingians could perhaps have the upper hand for the time being. But don’t take my word on this one, I’m not too sure and it is a job for a wizard or a Kremlinologist anyway. What is striking regardless of who has the upper hand is the extent to which activity like this demonstrates a competition in the assignment of blame: does it go to Meron whose innovations have contributed to dissension in the Tribunal, or to Harhoff who clumsily made it publicly known?

The upshot? In the first place, we are very much where we were before this happened, except ICTY’s credibility is a little more damaged. In the second place, we see an interesting arrangement of forces in which the nacoši are all on the same side regardless of nationality (but this was probably always the case).

Postscript: No links, sorry, I wrote this on a plane. I’m sure people who are interested will have no trouble finding a copy of the decision.